Sri Laxman @ Laxman Mourya vs Divisional Manager, ORITL.INS.CO.LTD& Anr

SRI LAXMAN @ LAXMAN MOURYA .......APPELLANT

VERSUS

DIVISIONAL MANAGER, ORITL.INS.CO.LTD& ANR .....RESPONDENTS

J U D G M E N T

G.S. Singhvi, J.

1. This appeal is directed against the judgment of the

Division Bench of the Karnataka High Court whereby the

compensation awarded to the appellant by Motor Accident Claims

Tribunal-4 Metropolitan Area, Bangalore (for short, 'the

Tribunal') in MVC No. 860/2004 was enhanced by a paltry sum of

Rs. 31,000/-

2. The appellant became a victim of road accident which

occurred on 8.9.2003 when he was hit from behind by bus bearing

No. KA-04-A-3784 belonging to respondent No. 2. As a result of

accident, the appellant sustained grievous injuries on different

parts of the body. On the same day, he was admitted in Bowring

and Lady Curzon Hospital, Banglore. He was discharged on

22.9.2003.

3. In the petition filed by him under Section 166 of the

2 Motor Vehicles Act, 1988 (for short, 'the Act'), the appellant

claimed compensation of Rs.5,00,000/- with interest by making the

following assertions:

(i) that at the time of accident, his age was 24

years;

(ii) that the accident was caused due to the rash and

negligent driving of the bus;

(iii)that due to the accident, he had sustained

grievous injuries and remained in the hospital and that

his treatment was still continuing;

(iv)that he had spent Rs.5,000/- by way of medical

expenses;

(v)that he was apprehensive of becoming disabled and

that the same would result in loss of earning and

affect his livelihood; and

(vi)that he would have to suffer constant pain and

discomfort throughout his life.

4. In their written statements respondent Nos. 1 & 2

denied the allegation of rash and negligent driving of the bus

and pleaded that they were not liable to pay compensation.

5. After considering evidence produced by the parties, the

Tribunal held that the accident was caused due to rash and

negligent driving of the bus owned by respondent No. 2. The

Tribunal then considered the issue of compensation, referred to

statement made by the appellant in the form of affidavit as also

the statement of Dr. S. Ranjanna, Orthopaedic Surgeon at Bowring

and Lady Curzon Hospital, who was examined as PW-2 and held that

the appellant is entitled to compensation of Rs.45,000/- with

interest at the rate of 8% from the date of application till the

date of deposit.

6. Dissatisfied with the award of the Tribunal, the

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appellant filed an appeal under Section 173 of the Act. The

Division Bench of the High Court did notice that as per PW-2, the

appellant had suffered 26% disability in the right lower limb,

25% urethral injury and 38% disability to the whole body but

granted a meager enhancement of Rs.31,000/- and declared that

appellant is entitled to total compensation of Rs.76,000/- with

interest at the rate of 6% on the enhanced compensation from the

date of petition till the date of realisation.

7. We have heard Mr. V.N. Raghupathy, learned counsel for

the appellant and perused the record. No one has appeared on

behalf of the respondents to assist the Court.

8. The personal sufferings of the survivors of the road

accidents and those who are disabled in such accidents are

manifold. Some time they can be measured in terms of money but

most of the times it is not possible to do so. If an individual

is permanently disabled in an accident, the cost of his medical

treatment and care is likely to be very high. In cases involving

total or partial disablement, the term `compensation' used in

Section 166 of the Motor Vehicles Act, 1988 (for short, `the

Act') would include not only the expenses incurred for immediate

treatment, but also the amount likely to be incurred for future

medical treatment/care necessary for a particular injury or

disability caused by an accident. A very large number of people

involved in motor accidents are pedestrians, children, women and

illiterate persons. Majority of them cannot, due to sheer

ignorance, poverty and other disabilities, engage competent

lawyers for proving negligence of the wrongdoer in adequate

measure. The insurance companies with whom the vehicles involved

in the accident are insured usually have battery of lawyers on

their panel. They contest the claim petitions by raising all

possible technical objections for ensuring that their clients are

either completely absolved or their liabilities minimized. This

results in prolonging the proceedings before the Tribunal.

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Sometimes the delay and litigation expenses' make the award

passed by the Tribunal and even by the High Court (in appeal)

meaningless. It is, therefore, imperative that the officers, who

preside over the Motor Accident Claims Tribunal adopt a proactive

approach and ensure that the claims filed under Sections 166 of

the Act are disposed of with required urgency and compensation is

awarded to the victims of the accident and/or their legal

representatives in adequate measure. The amount of compensation

in such cases should invariably include pecuniary and non-

pecuniary damages. In R.D. Hattangadi v. Pest Control (India)

Private Limited (1995) 1 SCC 551, this Court while dealing with a

case involving claim of compensation under the Motor Vehicles

Act, 1939, referred to the judgment of the Court of Appeal in

Ward v. James (1965) 1 All ER 563, Halsbury's Laws of England,

4th Edition, Volume 12 (page 446) and observed:

"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non- pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."

In the same case, the Court further observed:

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"In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards."

9. In Reshma Kumari v. Madan Mohan (2009) 13 SCC 422, this

Court reiterated that the compensation awarded under the Act

should be just and also identified the factors which should be

kept in mind while determining the amount of compensation. The

relevant portions of the judgment are extracted below:

"The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.

The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so.

In the Indian context several other factors

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should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd.

v.

Jashuben

held that

even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.

One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor."

(emphasis supplied)

10. In Arvind Kumar Mishra v. New India Assurance Company

Limited (2010) 10 SCC 254, the Court considered the plea for

enhancement of compensation made by the appellant, who was a

student of final year of engineering and had suffered 70%

disablement in a motor accident. After noticing factual matrix of

the case, the Court observed:

"We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must

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take care to give him full and fair compensation for that he had suffered."

(emphasis supplied)

11. In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, the Court

considered some of the precedents and held:

"The provision of the Motor Vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.

The heads under which compensation is awarded in personal injury cases are the following:

Pecuniary damages (Special damages)

(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability.

(iii) Future medical expenses. Non-pecuniary damages (General damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of

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normal longevity).

In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and

(iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."

(emphasis supplied)

12. The ratio of the above noted judgments is that if the

victim of an accident suffers permanent or temporary disability,

then efforts should always be made to award adequate compensation

not only for the physical injury and treatment, but also for the

pain, suffering and trauma caused due to accident, loss of

earning and victim's inability to lead a normal life and enjoy

amenities, which he would have enjoyed but for the disability

caused due to the accident.

13. In the light of the above, we shall now consider

whether the compensation awarded to the appellant is just or he

is entitled to enhanced compensation under any of the following

heads:

(i) Loss of earning and other gains due to the accident.

(ii) Loss of future earning on account of the disability.

(iii)Expenses for future treatment.

(iv) Compensation for pain, suffering and trauma caused due to the accident.

(v) Loss of amenities including loss of the prospects of marriage.

(vi) Loss of expectation of life.

14. In the affidavit filed by him before the Tribunal, the

appellant categorically stated that due to accident he had

suffered injuries on the abdomen and other parts of the body;

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that he was shifted to Bowring Hospital, where he remained for 15

days; that thereafter, he went to his native place at Gorakhpur

and remained admitted in Royal Hospital from 29.9.2003 to

10.10.2003; that he had also taken treatment at Sri Krishna

Hospital and Urology Centre as indoor patient from 12.10.2003 to

13.10.2003 and that he had spent Rs. 40,000/- towards medicines,

conveyance and other charges. He further stated that due to

accident, he was finding it difficult to pass urine and was

having severe pain in the lower part of the abdomen; that the

Doctors had advised him to undergo an operation to set right the

problem but due to financial constraint he was not in a position

to undergo the surgery. As regards his earning, the appellant

gave out that at the time of accident, he was working as

Carpenter and was earning Rs. 5,000/- per month and that after

the accident he was not in a position to work as carpenter.

15. In his affidavit, PW-2 Dr. S.Ranjanna confirmed that

the appellant was admitted in Bowring and Lady Curzon Hospital on

8.9.2003 and was discharged on 22.9.2003; that he had examined

the patient on 2.5.2005 and found that he was having altered

gait, frequency of inculcation and was finding difficult to sit

with cross-legs or squat. In cross-examination, Dr. Ranjanna

made the following statement:

"1) Patient walks with a riding gait.

2) Tenderness present over pubic region.

3) His movements on right side are restricted

by 30%.

4) Wasting of right pelive surrender by 6

cms.

5) Wasting of right leg muscles by 3 cms.

6) Difficulty to pass urine.

As per urologist opinion he need surgery for

STRUCTURE URETHRA.

Check X-ray shows 698/10.1.2003 evidence

of old fracture of both rams of both pelive

bones noted with altered shape of selive inset.

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Due to above disabilities he cannot pass the

urine smoothly he will have disturbed sleep due

to frequency of ... He cannot sit crossed,

difficulty to squat difficulty to lift any

weight. He cannot do any hard manual work.

After referring to various guidelines and

including Alimco manual I am the opinion that

the petitioner is having disability 26% of

right lower limb & 25% due to urethral injury

and 38% disabilities to the whole body. In view

of this disabilities, the petitioner cannot

work as a Carpenter and cannot do any other

manual work also.

I am herewith producing the following

documents. Such as,

1) Case Sheet.

2) Recent examination O . P . Book

3) Recent check X-ray."

16. Unfortunately, neither the Tribunal nor the High Court

adverted to the criteria laid down by this Court for award of

compensation under the two broad heads, i.e., pecuniary and non-

pecuniary damages and awarded compensation, which cannot but be

described as wholly unjust.

17. The respondents have not controverted the appellant's

assertion that at the time of accident his age was 24 years; that

he was earning Rs.5,000/- per month as a Carpenter and that as a

result of accident he had to remain in hospitals for different

durations. Therefore, under the first head i.e, loss of earning

and other gains during the period of hospitalisation (one month),

the appellant is entitled to compensation of Rs.5,000/-

18. It is also not in dispute that as a result of accident,

the appellant suffered 26% disability of the right lower limb,

25% disability due to urethral injury and 38% disability to the

whole body. Although, the percentage of the disability of whole

body is 38, the evidence produced by the appellant in the form of

his own affidavit and the affidavit of PW-2 shows that he will

not be able to work as carpenter or do any manual work throughout

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his life. In other words, even though the disability suffered by

the appellant is not 100 per cent, his working capacity has been

reduced to zero. However, keeping in view the degree of

disability, i.e. 38%, we hold that he shall be entitled to

compensation of Rs.3,32,640/- (38% of Rs.5,000.00 = Rs.1,540/- x

12 x 18) for loss of future earning.

19. The issue regarding expenses for future treatment is

required to be decided in the light of the evidence produced by

the parties. Although, in his evidence, PW-2 Dr. S Ranjanna has

stated that the appellant would require future treatment but no

concrete evidence was produced by him, i.e. appellant, about the

possible expenses which he may incur for treatment in future.

This phenomenon is not unusual in such cases particularly when

the claimant belongs to financially weaker strata of the society.

He cannot engage a competent lawyer to effectively prosecute his

case before the Tribunal and the High Court. However, as held in

R. D. Hattangadi v. Pest Control (India) Private Ltd. (supra) the

Tribunal and the Court can fix the amount of compensation by

making some guess work. Keeping in view the nature of injuries

suffered by the appellant and the fact that he will have to take

treatment throughout life, we feel that ends of justice will be

met by awarding him a sum of Rs.1,50,000/- under that head.

20. For pain, suffering and trauma caused due to the

accident, a sum of Rs.1,50,000/- deserves to be awarded to the

appellant. Likewise, for the loss of amenities including the

loss of prospects of marriage which has become an illusion for

the appellant, it will be just and proper to award a sum of Rs.2

lacs.

21. It is true that in the petition filed by him under

Section 166 of the Act, the appellant had claimed compensation of

Rs.5,00,000/- only, but as held in Nagappa vs. Gurudayal Singh

(2003) 2 SCC 274, in the absence of any bar in the Act, the

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Tribunal and for that reason any competent Court is entitled to

award higher compensation to the victim of an accident.

22. In the result, the appeal is allowed. The impugned

judgment is set aside and it is declared that the appellant shall

be entitled to total compensation of Rs.8,37,640/- with interest

at the rate of 8% from the date of filing the petition till the

date of realisation. Respondent No. 1 is directed to pay the

balance amount of compensation to the appellant with interest

within a period of three months from the date of

receipt/production of the copy of judgment by preparing a draft

in his name.

..............................J. ( G.S.SINGHVI )

..............................J. ( SUDHANSU JYOTI MUKHOPADHAYA ) NEW DELHI;

NOVEMBER 8, 2011.

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